Last Saturday, the U.S. government closed public comments to the proposed amendments to the Federal Rules of Civil Procedure. The proposed changes, which were introduced to help speed up the pretrial litigation process, have been the subject of heated debate between the plaintiffs’ and defendants’ bars.
The two most controversial changes proposed are presumptive limits on depositions and interrogatories and the new emphasis on the “proportionality” of discovery demands.
Judge J. Leon Holmes of the U.S. District Court, Eastern District of Arkansas calls the proposed changes “unwise,” and believes that if they are adopted, they will increase the number of discovery disputes.
In a letter to Jeffrey Sutton, the chair of the Standing Committee on Rules of Practice and Procedure, and committee member U.S. District Court Judge Patrick Schiltz, Judge Holmes writes that “the proposed amendments presuppose that the typical case can be prepared adequately with five depositions and fifteen interrogatories, but for many cases that is not true; which means that these stringent limits will give an advantage to the party in possession of most of the relevant information and generate more discovery disputes than we have seen before.”
Stephen Tillery, named partner at Korein Tillery and a 40-year veteran of complex civil litigation, says that the proposed amendments are “unnecessary, will unduly hamstring parties in their search for the truth, and will result in a proliferation of motion practice that will increase costs and delay resolutions of cases.”
Like Judge Holmes, Tillery doesn’t support reducing the number of depositions. “Depositions are arguably the most important tool in a civil litigator’s arsenal, and given that Rule 45 limits the reach of trial subpoenas, they are often the only means a lawyer has of obtaining admissible testimony from critical witnesses. The Federal Judicial Center [in a 2009 closed-case study] found no abuse in the use of depositions in discovery; to the contrary, the FJC study found that in the vast majority of cases, the parties took less depositions than those allowed under the current presumptive limits,” Tillery writes in an open letter to the Committee.
Both Tillery and Judge Holmes, along with numerous plaintiffs’ attorneys, are particularly troubled by the “proportionality” amendment. The rule changes would limit the scope of discovery to information that is “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources,” and other factors to be evaluated by the courts.
“Presently, the scope of discovery is defined in terms of whether the discovery is reasonably calculated to lead to the discovery of admissible evidence, with certain caveats, one of which is that discovery may be limited if the burden or expense is disproportionate to the needs of the case. The proposed amendments would transform what is now a caveat, or an exception to the general rule, to the definition of the scope of discovery, which, again, almost certainly will increase the number of discovery disputes,” Judge Holmes writes.
Tillery notes that the 2009 Federal Judicial Center (FJC) study shows that “the empirical evidence doesn’t support the perceived disproportionality between discovery costs and the amount in controversy.” According to the FJC study, in almost all cases discovery costs are proportional to the stakes-the median cost for plaintiffs is 1.6 percent of the amount at stake, and for defendants the median cost is 3.3 percent of that amount.
Additionally, Tillery points out that according to the lawyers surveyed in the FJC study, the median cost of discovery for plaintiffs was only $15,000 and just $20,000 for defendants. “Notably, the FJC found higher discovery costs were significantly correlated to (1) the amount at stake, (2), the complexity of the litigation, and (3), the size of the law firm representing the clients. The facts strongly suggest that external factors not addressed by the proposed amendments are largely responsible for higher discovery costs.”
Milberg partner Henry Kelston, who spoke at one of the two public hearings about the proposed changes on Capitol Hill, is highly critical of the amendments and fears that it will have a negative impact on the justice system. “The proposal to limit discovery individually and collectively will be beneficial to large corporate litigants and detrimental to plaintiffs,” he said at the January 14 hearing. “By design, these amendments will reduce discovery costs for large corporations simply by reducing plaintiffs’ access to the information needed to prove their claims. This is not true cost saving. This is cost shifting with plaintiffs paying the price in reduced access to justice.”
While a decision on the proposed rule changes is pending, the deciding members would do well to heed these last thoughts by Judge Holmes. “Let me add that I do not believe that our role as judges is to manage cases; rather, our role is to decide disputes presented to us by the litigants….Generally, good lawyers can agree on discovery and manage their cases without supervision by judges. When lawyers disagree on a discovery matter, they can of course present that dispute to the court for resolution, and it is the job of the court to decide the dispute. Absent a dispute for us to decide, however, we should trust the lawyers and thus leave them free to prepare their cases as they see fit.”
-Mary Ellen Egan